Debra Burlingame Responds

Debra Burlingame, a co-director of Keep America Safe and the sister of September 11 pilot Charles Burlingame III, sent the following in response to our post on Ghailani yesterday:

I find your Ghailani verdict analysis rather sad; No mention of justice for the 224 victims whose lives Ghailani snuffed out (and the thousands of survivors who were injured, some horrifically). Ghailani is not in any way held accountable for their murders. He was found guilty of conspiring to destroy a building. Hell, Bill Ayers did that, and now he's a college professor with important friends.

Last June I met a kind and humble gentleman whose wife was killed at the embassy in Nairobi. I can't imagine that after twelve years he's "pleased" tonight. I know I wouldn't be.

Debra’s comment raises a profound question, or rather a trio of closely-related questions. What constitutes “justice” from the perspective of the victims of such atrocities? Might there be a difference between the victims’ perspective and that of society at large? And if there is such a difference what priority should they have in relation to one another? We don’t have answers to these questions, but we offer a few thoughts.

Debra suggests that a victim would not feel that justice has been served by yesterday’s verdict given the murder acquittals, notwithstanding the prospect that Ghailani may well still get a life sentence. That’s bound to be true for at least some of the victims and their survivors. It’s also bound to be true that others will feel differently, however. Some will be satisfied depending on how the sentence turns out, others would not be satisfied by any result short of the death penalty, and quite possibly still others will feel that even an execution falls short of the mark.

But let’s stay with Debra’s point—that some victims and their survivors are sure to be brutally disappointed by the fact of conviction only on the one, non-murder count. How would this in any way prove that it was a mistake--as Debra's statement yesterday emphatically insists--to pursue a civilian prosecution rather than a military commission prosecution? It certainly might be taken as proof that it would have been easier just to continue holding Ghailani as a detainee at GTMO, but given Debra’s line of concern, she surely must take the view that a prosecution for the bombing was a necessary step in order to provide accountability, closure, and, well, justice. Of course, a commission proceeding might have produced convictions across the board. But it might not have. For that matter, the same case tried again in federal court might have produced either result too. One cannot know. The interesting question is whether there is some feature of the commission system that makes it notably more likely that it would produce a conviction in this instance. The case has not been made that this is so. To the contrary, given that there is tremendous uncertainty regarding whether the crime of conspiracy is prosecutable in a commission in the first instance (particularly for conspiracies that predated the 2006 Military Commissions Act, as this one did), it’s probably more accurate to say that the odds of securing justice were better in the civilian system in this context.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and is co-chair of the Hoover Institution's Working Group on National Security, Technology, and Law.